Amicus Brief of Law Scholars in Fox v. Dish, No. 12-57048 (9th Cir)

Abstract

The outcome of this case will affect the future of private non-commercial time-shifting of television programs – a fair use right expressly recognized by the Supreme Court almost three decades ago in Sony Corp. of America v. University City Studios, Inc., 464 U.S. 417 (1984). The advance of technology from the videotape recorder (“VTR”), to the videocassette recorder (“VCR”) considered in Sony, to today’s digital video recorder (“DVR”) has not – nor should it – affect that right.Under Sony, using the Hopper (Dish’s DVR) and PrimeTime Anytime (“PTAT”) is as much a fair use as the original Betamax technology. Both enable private non-commercial time-shifting of legally acquired television programs, and Fox’s attempt to overrule Sony by claiming it has licensed time-shifted programming to internet websites such as Hulu and iTunes should be to no avail, as fair use markets cannot be reclaimed from the public through subsequent licensing practices. To allow this would be to take settled fair uses and turn them into infringements over time at the copyrights holder’s discretion.Fox continues its attack on fair use by seeking to stop Dish’s creation of quality assurance (“QA”) copies of Fox’s programs, which Dish then uses to access unprotectable facts about the programs – the start and stop times of show segments – and to use those facts to ensure that AutoHop, its commercial skipping program, responds appropriately. Use of such intermediate copies in order to access non-protected information has long been held to be fair. Fox attempts to distinguish these precedents by arguing that such copying is somehow not “transformative” of a message or meaning within the television program itself; but such transformation is not required for the purposes of understanding works or extracting unprotectable facts.